The Eichmann Trial (17 page)

The criticisms of Hausner’s courtroom tactics were not unjustified. In his memoir, Hausner insisted that his objective had been neither to deliver a “crushing blow” nor to conduct a “show,” but to build an airtight forensic argument. However, his behavior during the trial suggests otherwise.
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Often during his cross-examination he seemed intent on trying to extract that unambiguous confession which, after the trial, he insisted he was not seeking. He seemed to want it, not for the judges, but for an audience that extended well beyond the public gallery. He badgered Eichmann long after having proved his point. It is unclear whether he was emotionally overwrought or playing to the galleries. In either case this behavior was ultimately not just to his own detriment but also to that of this legal proceeding. In the words of the
New York Times
, Hausner’s “shrillness and posturing” often obscured his questions and made Eichmann look like a “clever and wily opponent.” At moments such as these, the trial became a “prolonged nightmare.”
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He also transformed Eichmann from the low-level bureaucrat who played an exceptionally significant role in the Final Solution into
the
man at the heart of the operation, which he was not. When he did precisely what a prosecutor should do—box Eichmann into a corner from which the only escape was to pile excuse on top of excuse—he performed more than admirably. It was then that he left Eichmann twisting in the wind. When he shouted, hectored, gestured wildly, and kept harping on the same point, he looked more than theatrical; he looked as if he had been bested.

Even if Hausner had not engaged in these theatrics, on some level it is doubtful whether he could have succeeded at the task he had taken upon himself. He wanted to present Eichmann to the world as the epitome of both the literal and the symbolic Nazi, and, in the course of so doing, to take on history itself: to paint an all-encompassing portrait of this man’s crimes against a background of German collusion at every level of society, an innate age-old Christian anti-Semitism, and the horrors of a bureaucratic system that made murder a
desideratum
. He wanted to shine the spotlight on Eichmann while simultaneously calling to account a world that silently acquiesced to the horrors under way. It was an inherently impossible task.

A
fter Hausner completed his cross-examination, it was the judges’ turn to query Eichmann. According to Israeli judicial procedure, this process is designed to ensure that the judges properly understand the defendant’s testimony.
²⁴
Holocaust scholar Omer Bartov aptly describes these exchanges as among “the most fascinating documents about the Holocaust in existence.” Judge Raveh, who was the first one to question Eichmann, began with something that sounded surrealistic: a discussion of Immanuel Kant’s categorical imperative. Eichmann had told Captain Less that he structured his life on Kant’s belief that people must behave so that their actions can be raised to the level of general legislation. In what Gouri described as an “academic debate in a slaughterhouse,” Judge Raveh began by asking how Eichmann could mesh his insistence that he lived according to that credo with his actions during the war. Eichmann admitted that during the Final Solution he could not “live entirely according to it, although I would like to do so.” Instead, he had to follow the “orders by a supreme head of state.” When, Raveh wondered, did he become aware that he could not live according to this principle? Eichmann recalled the first time he had witnessed mass shootings. That was when he knew. Many years later, Servatius’s assistant Dieter Wechtenbruch described this to Yablonka as the most “classic truth of intent” he had ever witnessed in a courtroom. Eichmann had acknowledged that he understood the implications of what he was doing but continued to obey his orders nonetheless. Raveh then turned to the statement Eichmann had written while in prison prior to the trial. He had summarized the speech he gave to his men as the Third Reich was crumbling around them: “For five years millions of enemies had assailed Germany, and millions of enemies have been killed. And I estimate that war has cost five million Jews.” Eichmann proclaimed that he would jump into his grave fulfilled at having been part of this effort. David Cesarani, in his important study of Eichmann’s career, considers this the crucial moment. His moral reflections regarding Kant bore no relationship to his utter contentment—if not joy—at having brought about the death of millions of Jews.
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Raveh asked Eichmann about the phrase in the minutes of the Wannsee Conference: “The various types of possible solutions were discussed.” “What,” he asked, “was talked about there?” Eichmann’s answer, delivered in precisely the fashion he had refused to use with Hausner, was short and direct: “The various possibilities for killing.” Raveh, turning to the celebratory fireside Cognac chat, asked: “So why was Eichmann included?” Eichmann tried to explain how he came to be there: “Because—we had only just been left alone, and no one else was there, and then Heydrich said how he wanted the minutes to be drafted, and after he listed these items, there was no further talk of these matters. Instead I was asked to drink a glass or two or three of cognac. That is how it happened.” Armed with these “relevant instructions,” he wrote up the minutes of the meeting at which the process for killing European Jewry had been decided upon. Even twenty years later, he seemed intent on showing that he had followed his orders in a precise fashion.
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Halevi began by urging Eichmann to drop his objections to allowing the transcripts of the Sassen interview to be introduced. Halevi was suggesting to Eichmann that, given that his fate was all but sealed, he should let the full truth be heard in the courtroom. “This is likely to be the only public opportunity you will have of showing the world … what sort of a man you are, whether … you want to evade the truth.” Pushing harder, he reminded Eichmann that he had insisted that “an oath is one of the highest moral obligations.” Now was his opportunity to fulfill the oath he had freely given at the start of the trial to tell the truth. Eichmann did not budge. Halevi gave up and returned to the topic Hausner had so assiduously tried to keep out of the trial. As he had with Raveh, Eichmann responded directly.

Halevi: The Jewish functionaries were given duties … which greatly facilitated emigration…

Eichmann: Yes sir.

Halevi: And then that could be switched very rapidly and simply to deportation.

Eichmann: Yes sir.

Halevi: [In] Poland … Hungary … in Amsterdam …

Eichmann: Yes.

Halevi: As instruments of German policy regarding the Jews, these Jewish Councils—shall we say—considerably facilitated the implementation of measures against the Jews?

Eichmann: Yes.

Halevi: And saved a great deal of manpower and staff.

Eichmann: Yes.

Halevi: That made it possible, by misleading the victims, to facilitate the work, and also to harness the Jews themselves to work for their own destruction.

With this exchange, Judge Halevi ensured that the difficult and painful topic of the Jewish Councils—those who, as he had ruled in the Kasztner trial, had “sold” their souls “to the devil”—was part of this proceeding. Halevi had previously thwarted Hausner, but never so pointedly and unambiguously. And though this trial had been, for the most part, exactly what Hausner wanted it to be, a trial of the perpetrators, as it neared its end Judge Benjamin Halevi, with the cooperation of Adolf Eichmann, called the victims to account.

Halevi then returned to Eichmann’s behavior. He recalled Eichmann’s comment to a colleague who wished to exempt some Jews from deportation. Exceptions to the rule were impossible, because they could snowball and the “whole operation could collapse.” However, Halevi observed, Eichmann
had
made exceptions: in Hungary, Jewish Council members could ask him to exempt their closest relatives. Eichmann had arranged for the Kasztner train. Eichmann, knowing that he could not claim credit for this and still hold to his “only following orders” defense, protested that his superiors had authorized all such exceptions.

Then, seeming to abandon this line of questioning, Halevi asked rather matter-of-factly: “Personally, you were not an anti-Semite?” Eichmann answered with a simple “No.” Halevi observed that some of Eichmann’s relatives had married Jews, and that he had a Jewish aunt, Dorczi, whose daughter was categorized as half Jewish by the Nuremberg Laws. Yet he had approved her immigration to Switzerland. In addition, he had helped a Viennese couple escape. “Of course I authorized this.… I had no innate hatred of Jews.” Eichmann then volunteered, as if to gain the judges’ approval, that these “were not the only cases” in which he had helped Jews. After all, he told Halevi, “in every law there were certain loopholes.” With that statement Eichmann revealed the stunning inconsistency of his defense. Halevi, without losing a second, bore in with rapierlike directness. At times Eichmann could turn “a blind eye,” ignore his oath, and “act according to your human impulses?” Eichmann, apparently aware that he had entrapped himself, protested rather lamely, “There were a very few cases.” Halevi assured him that there was no “need for you to apologize … for the fact of the matter is that in a few cases you did something.” Then Halevi cut to the heart of the matter. In these cases “you were not so strict about your oath of allegiance?”
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With that exchange, anything that remained of Eichmann’s defense after Raveh’s questions totally collapsed. He had known he was doing something wrong, yet he continued to do it. His loyalty oath was not inviolate—it could be abrogated. When he wished, he could abide by the categorical imperative and rescue lives.

Finally, it was Landau’s turn. Not surprisingly, given his exchange with Raveh and Halevi, Eichmann now seemed “guarded, vigilant.”
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Landau asked about his statement that he had seen Jews loaded onto freight cars. Eichmann fell back on his faulty-memory excuse: “Jews being loaded onto freight cars? I cannot remember this however hard I think things over.” A coolly skeptical Landau made it clear that Eichmann’s memory lapse only made him look more complicit: “This is something which, I would assume, no one who had observed it can ever forget.” When Landau asked about his role in “forced emigration,” Eichmann again claimed that he had worked with “harassed and oppressed” Jews on an “equal footing” in order to “make the best of the muddle.” Once again, Eichmann spoke as if this “muddle” was a force of nature and not something caused by the very system he had facilitated.

One of the most compelling moments in his exchange with Landau came when the judge turned to the Wannsee Conference. Intent on verifying the details of precisely what was discussed at the meeting, Landau asked why the specific “methods of killing” were not included in the minutes. Eichmann reminded Landau that Heydrich had given him precise instructions on what was to be included and what was to be omitted. Landau assumed that details of the specific killing methods, such as gas, had been omitted because they were “so important” and Heydrich did not want references to them to be widely circulated. Eichmann corrected Landau. “No on the contrary, Your Honor. Heydrich wanted to make sure that the … essential points [were] in the record, and the non-essential points were then left out.” Landau, who generally showed no emotion, seemed nonplussed at the thought that the means of killing millions of people were not worthy of mention. Ever the professional, he continued with barely a pause, “Does that mean, then, that the methods of killing were [considered] an unimportant topic?” Eichmann’s rather nonchalant response still amazes me: “Oh, the
methods
of killing?” Landau had to remind him: “That
is
what we are talking about.” No, Eichmann assured him, there was no specific talk of killing methods.
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This part of the trial ended with a brief additional cross-examination by Hausner. Hausner had Eichmann read from the transcript of the Sassen tape: “I do a job if I can understand the need for it or the meaning of it, and if I enjoy doing it. [Then] time will just fly by, and that is how it was with the Jews.” Eichmann read on in a flat, matter-of-fact manner: “[When] I received orders to proceed … against the guest of the host people, I thought this over, and when I recognized the necessity to do so, I carried out these [orders] with the degree of fanaticism one expected of oneself as a National Socialist of long standing.” Eichmann protested, rather lamely, that this referred to the period before 1939. Hausner wisely ignored the protest and asked for a final clarification: “So the ‘guest’ people is the Jewish People and the ‘host’ are the Germans. Right?” Eichmann’s one-word answer—“Yes”—must have sounded to many in the room like an affirmation not just of Zionism, but of the appropriateness of holding the trial in the Jewish state.
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A
few days later, the court reconvened for the summations. Hausner wove his weeks of evidence into an all-encompassing whole. It was impressive, sweeping, and, as had been the case from the outset, wrong in many respects. Pushing past the evidence, he accused Eichmann of things for which he was not responsible. He painted the Holocaust as a well-organized top-down bureaucratic endeavor, though it had been a far more incremental and sometimes even haphazard operation. Hausner made the man in the glass booth look more mythic than real. Returning to a theme he had articulated in his opening talk, he linked the two Adolfs, Hitler and Eichmann. This turned Eichmann into a caricature, diminished the culpability of Himmler, Müller, Heydrich, and many others, and put the onus on one man. Unable to bring these higher-ranking Nazis to court, Hausner placed their guilt on Eichmann.
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It may have served Hausner’s short-term rhetorical goal, but it did not serve the cause of history.